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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — March 1983


Environmental Protection Outweighs Development in Ninth Circuit Ruling on Alaska Lands Act

by Kenneth L. Rosenbaum

Editors' Summary: Congress passed the Alaska National Interest Lands Conservation Act in 1980 to resolve the uncertainty over the fate of federal holdings in Alaska and speed transfer of lands owed to the state and natives. The Act puts millions of acres under protective management and prescribes the rights of inholders and natives. The Ninth Circuit, in the first appellate decision applying the Act to lands in Alaska, ruled that the Act requires the Forest Service to prepare an EIS before granting a special use permit to U.S. Borax for bulk sampling of its molybdenum claims in Misty Fjords National Monument. The court's interpretation heavily emphasized the Act's environmental purposes. Though the section of the Act at issue was narrow, the court's environmental reading could bear on other Alaska lands issues, notably control of access to other inholdings.

CEQ's "Worst Case Analysis" Rule for EISs: "Reasonable" Speculation or Crystal Ball Inquiry?

by Frances L. McChesney

Editors' Summary: Early this year, the Fifth Circuit, in Sierra Club v. Sigler, became the first court of appeals to interpret CEQ's "worst case" regulation for EISs. The rule requires agencies to perform a worst case analysis where significant scientific uncertainty or gaps in information exist concerning the environmental effects of a project. Because the rule is unique and only recently promulgated, it is unclear what types of projects are included within the rule or how broad the analysis must be. The Fifth Circuit found that the Corps of Engineers' deepwater port project in Galveston, Texas, which created the possibility of a major oil spill from a supertanker in a large estuary, was "precisely the type of situation" requiring such an analysis. The court's thorough analysis of the rule provides useful guidance for agencies and courts. While the rule may still prove difficult to implement, the court suggested that judicial review will not be as rigorous as review of other parts of an EIS.

RCRA's Imminent Hazard Provision and Inactive Hazardous Waste Dumps: A Reappraisal After U.S. v. Waste Industries

by Phillip D. Reed

Editors' Summary: On December 30, 1982 a federal district judge handed EPA's hazardous waste program an unexpected setback. He dismissed an EPA complaint seeking to use RCRA §7003 to force the operator of a closed landfill and the owner of the land on which it is located to abate chemical pollution leaking from the dump into the groundwater. The decision in United States v. Waste Industries was the first to reject the Agency's application of §7003 to an inactive waste disposal site. The court chose not to follow precedent from several district courts and one court of appeals in reaching this conclusion, and relied heavily on the Congress' passage of CERCLA as evidence that it had not intended RCRA's imminent hazard provision to apply to inactive waste sites. The Comment reviews the decisions to date on §7003 and examines the future role of the RCRA provision now that CERCLA is on the books.


EPA Superfund Enforcement: The Question Isn't When to Negotiate and When to Litigate, But How to Do Either and How Often

by Jeffrey G. Miller

Congressional committees, the media, environmental groups and state officials are investigating and criticizing virtually all aspects of the Environmental Protection Agency's (EPA's) hazardous waste cleanup program under the Comprehensive Environmental Response, Compensation and Liability Act (Superfund). Citations for contempt of Congress, constitutional confrontations between the executive and legislative branches, and firing of the top EPA hazardous waste regulator add an element of high drama. Many of the charges in this controversy are leveled at EPA's efforts to detoxify hazardous waste sites. One repeated accusation is that EPA's propensity to negotiate settlements with the generators of the hazardous wastes found at the sites, rather than first filing suit, establishes that EPA is reluctant to enforce against the generators, who often are bastions of corporate America.

This charge evinces a basic misunderstanding of the litigation process generally and of large, multi-party hazardous waste cases in particular. EPA's true posture toward hazardous waste enforcement cannot be gauged by such a simple and misdirected inquiry. Concern over the "negotiate first" approach obscures questions more pertinent to the health of EPA's enforcement program and the viability of its multi-party hazardous waste case strategy.

The Environmental Protection Act of 1983—Is an Environmental Protection Commission Necessary?

by Phillip D. Reed

Senator Moynihan (D-N.Y.) and Congressman Scheuer (D-N.Y.) are pushing legislation to make the Environmental Protection Agency (EPA) into an independent commission. It is hardly necessary to recount the immediate reasons for the initiative; they are on the front pages of newspapers across the country. A press release announcing the legislation said simply:

We are paying the price, day in and day out, for an agency embroiled in controversy, paralyzed by distrust from without and defiance from within. It is time to begin anew.